UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EMILE HADDAD,

Plaintiff-Appellant,

v.

No. 97-2388

VIRGINIA POLYTECHNIC INSTITUTE AND

STATE UNIVERSITY,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CA-97-1189-A)

Submitted: April 21, 1998

Decided: May 5, 1998

Before MURNAGHAN, ERVIN, and HAMILTON, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Emile Haddad, Appellant Pro Se. Jerry Dean Cain, Kay Heidbreder,

VIRGINIA POLYTECHNIC INSTITUTE & STATE UNIVERSITY,

Blacksburg, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

In March 1997 Emile Haddad filed identical actions in both state

and federal court alleging that Virginia Polytechnic Institute and State

University ("Virginia Tech") discriminated against him based on his

age in violation of the Age Discrimination in Employment Act of

1967 ("ADEA"), 29 U.S.C.A. §§ 621 - 634 (West 1985 & Supp.

1997), the Due Process Clause of the Fourteenth Amendment, and

Virginia state law. Virginia Tech moved to dismiss the action filed in

federal court ("Haddad I"), claiming that the state law claims were

barred by the Eleventh Amendment and that the federal claims were

insufficient as a matter of law. The district court dismissed without

prejudice the state law claims as barred by the Eleventh Amendment,

dismissed the due process claim, and determined the case would proceed on the ADEA claim. Haddad then served Virginia Tech with

notice of the identical action he had filed in state court ("Haddad II").

Virginia Tech then filed a notice of removal in federal district court

accompanied by a motion to dismiss. In response, Haddad moved the

district court to remand the case to state court. The district court

determined that Haddad's inclusion of a federal claim provided a

proper basis upon which Virginia Tech could remove the action to

federal court, and dismissed without prejudice the entire action

because Haddad had previously filed an identical action in Haddad I.

Haddad now appeals from the district court's order dismissing Haddad II, claiming that the district court was obligated to remand the

action to state court.

The statute governing removal is 28 U.S.C. § 1441(a) (1997). That

section states in relevant part:

Except as otherwise expressly provided by Act of Congress,

any civil action brought in a State court of which the district

courts of the United States have original jurisdiction, may be

removed by the defendant or the defendants, to the district

court of the United States for the district and division

embracing the place where such action is pending.

28 U.S.C. § 1441(a). We find that the language of § 1441(a) precludes

removal of an action to federal court unless the federal court has orig-

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inal jurisdiction over the entire action. Accordingly, removal jurisdiction over an action is defeated if the court lacks jurisdiction over any

claim in the action. See Frances J. v. Wright , 19 F.3d 337, 340-41

(7th Cir. 1994); McKay v. Boyd Const. Co., 769 F.2d 1084, 1086-87

(5th Cir. 1985); see also Lowery v. Prince George's County, Md., 960

F. Supp. 952 (D. Md. 1997). But see Kruse v. Hawaii, 68 F.3d 331,

334-35 (9th Cir. 1995); Henry v. Metropolitan Sewer Dist., 922 F.2d

332, 337-39 (6th Cir. 1990).

Here, the Eleventh Amendment barred the district court from exercising jurisdiction over Haddad's state law and due process claims,

and thus under § 1441(a) the action was not removable to federal

court. Having found that none of Haddad's claims were removable to

federal court because the district court lacked original jurisdiction

over the action as a whole, we find that the district court had no discretion to dismiss rather than remand the action. See generally Roach

v. West Virginia Reg'l Jail & Correctional Facility Auth.,* 74 F.3d

46, 48-49 (4th Cir. 1996) (holding a district court may not dismiss but

must remand an action removed from state court over which the court

does not have subject matter jurisdiction). Therefore, we vacate the

district court's order dismissing Haddad's action in its entirety and

remand with instructions that the case be remanded to the Virginia

state court. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

VACATED AND REMANDED

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*Roach involved an action removed from state court that contained

both state and federal claims. The district court found that the Eleventh

Amendment acted as bar to federal jurisdiction over both Roach's federal

and state claims and thus dismissed the action. This Court reversed, finding that the plain language of § 1447 obligated the district court to

remand the entire case to the state court. Id. at 48-49. The instant case

differs from Roach in that the Eleventh Amendment acts only as a bar

to federal jurisdiction over Haddad's state law and due process claims,

but not his ADEA claim. See 29 U.S.C.A.§ 630(b)(2) (West 1985).

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